Common use of Conditions to Obligations of Purchaser and Merger Sub Clause in Contracts

Conditions to Obligations of Purchaser and Merger Sub. The obligations of Purchaser and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii)(A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality, a Company Material Adverse Effect or a Material Adverse Restriction shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 5.1(a), Section 5.2 (other than with respect to the non-applicability of any anti-takeover laws or regulations other than Section 203 of the DGCL), Section 5.4(a), Section 5.5, Section 5.10(g) and Section 5.23 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except for de minimis deviations) when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (C) the representations and warranties of the Company set forth in Section 5.3(b), Section 5.4(b), Section 5.6, Section 5.9, Section 5.11, Section 5.19 (except for the last two sentences thereof) and Section 5.20(b) shall have been true and correct in all material respects when made and as of the Effective Time, as if made again at and as of such time, (D) the representations and warranties of the Company set forth in Section 5.10(h) and the last two sentences of Section 5.19 shall have been true and correct when made and as of the Effective Time, as if made again at and as of such time, except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not result in, and is not reasonably likely to result in, a Material Adverse Restriction, and (E) all other representations and warranties of the Company shall have been true and correct when made and at and as of the Effective Time as if made at and as of such time (provided, that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Purchaser shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effect; (b) there shall not be pending (i) any action or proceeding by any Governmental Entity before any court or Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), that has a reasonable likelihood of success seeking to (x) make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or the other transactions contemplated hereby or by the Ancillary Documents or seeking to obtain material damages, (y) restrain or prohibit Purchaser’s (including its affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or Subsidiaries or affiliates, or to compel Purchaser or any of its affiliates (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (z) impose or confirm material limitations on the ability of Purchaser or any of its affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Common Stock, including, without limitation, the right to vote any Common Stock acquired or owned by Purchaser or any of its affiliates on all matters properly presented to the holders of Common Stock, and no Governmental Entity or arbitrator shall have issued any judgment, order, decree or injunction, and there shall not be any Law, that, in Purchaser’s reasonable judgment, is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (x) through (z); provided, however, that Purchaser shall use its reasonable best efforts to have any such judgment, order, decree or injunction vacated; (c) the Company shall have (i) obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings identified on Section 8.3(c) of the Company Disclosure Letter; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Purchaser or Merger Sub of any of its material covenants in this Agreement and (ii) obtained the termination as of the Closing Date of the Management Consulting Services Agreement, dated as of December 18, 1994, by and among Perry Capital Corp., Perry Principals, L.L.C., ▇▇▇▇ Capital, Inc. and Fleet Growth Resources, Inc., without any further payment due by, or liability or obligation of, the Company (including its Subsidiaries and successors) thereunder; (d) the aggregate number of shares of Common Stock at the Effective Time, the holders of which have demanded appraisal of their shares from the Company in accordance with the provisions of Section 262 of the DGCL, shall not equal 10% or more of the Common Stock outstanding as of the record date for the Stockholder Meeting; (e) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect; (f) the employment and non-competition agreements, as amended, listed on Section 8.3(f) of the Company Disclosure Letter shall be in full force and effect and none of such individuals shall be unable or unwilling, absent a breach or default by the Company of his underlying employment and non-competition agreement, to provide his services in accordance with the terms and conditions of his employment and non-competition agreement (as so amended); provided, however, that the condition set forth in this Section 8.3(f) will be deemed to be waived with respect to all persons listed on Section 8.3(f) of the Company Disclosure Letter, except ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who becomes incapable of performing such services due to the death or “Disability” (as that term is defined in the applicable employment agreement) of such individual; (g) at or prior to the Closing, on behalf of holders of Common Stock, the Company shall furnish to Purchaser an affidavit stating, under penalty of perjury, that the Company is not and has not been a United States real property holding corporation at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; (h) ▇▇. ▇▇▇▇▇▇ and the other executives of the Company listed in Section 8.3(h) of the Company Disclosure Letter (to the extent executives, other than ▇▇. ▇▇▇▇▇▇, elect to invest) (the “Investing Executives”) shall have invested at least $4.0 million in the aggregate in any combination of (i) common equity of the Purchaser and (ii) preferred equity of the Purchaser; provided, however, that any such Investing Executive shall not invest in any class of preferred equity of the Purchaser in an amount that exceeds an amount equal to (A) such Investing Executive’s aggregate investment in the equity of the Purchaser, multiplied by (B) a fraction equal to the amount of equity invested in such class of preferred equity by Persons other than such Investing Executive divided by the aggregate amount of equity invested in the Purchaser by Persons other than the Investing Executives; and (i) the Financing or any alternate or substitute financing contemplated by Section 7.12 and the retirement of all of the Company’s and its Subsidiaries’ indebtedness and the release of any related liens shall have been consummated on terms reasonably acceptable to Merger Sub; provided, however, that the terms of the Financing Letters as of the date hereof shall be deemed to be acceptable to Merger Sub; and provided, further, however, that Purchaser and Merger Sub hereby acknowledge that if the parties to the Financing Letters other than LGP are prepared to fully comply with their respective obligations thereunder to enter into and advance $100 million of funds under the Senior Credit Facilities (as defined in the Bank Commitment Letter) and to enter into the revolving credit facility of $50 million contemplated by the Bank Commitment Letter and either (A) purchase $150 million aggregate principal amount of the Securities (as defined in the Bank Commitment Letter) or (B) make the Bridge Loans (as defined in the Bank Commitment Letter) in the aggregate principal amount of $150 million (as contemplated by the Bank Commitment Letter), the condition set forth in this Section 8.3(i) shall be deemed to have been satisfied.

Conditions to Obligations of Purchaser and Merger Sub. The obligations of Purchaser and Merger Sub to consummate the Merger are subject to the satisfaction or waiver of the following further conditions: (a) (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii)(A) the representations and warranties of the Company contained in this Agreement that are qualified by reference to materiality, a Company Material Adverse Effect or a Material Adverse Restriction shall be true and correct when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (B) the representations and warranties of the Company set forth in Section 5.1(a), Section 5.2 (other than with respect to the non-applicability of any anti-takeover laws or regulations other than Section 203 of the DGCL), Section 5.4(a), Section 5.5, Section 5.10(g) and Section 5.23 that are not qualified by Company Material Adverse Effect shall have been true and correct in all respects (except for de minimis deviations) when made and at and as of the Effective Time, as if made at and as of such time (provided that representations made as of a specific date shall be required to be true and correct as of such date only), (C) the representations and warranties of the Company set forth in Section 5.3(b), Section 5.4(b), Section 5.6, Section 5.9, Section 5.11, Section 5.19 (except for the last two sentences thereof) and Section 5.20(b) shall have been true and correct in all material respects when made and as of the Effective Time, as if made again at and as of such time, (D) the representations and warranties of the Company set forth in Section 5.10(h) and the last two sentences of Section 5.19 shall have been true and correct when made and as of the Effective Time, as if made again at and as of such time, except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not result in, and is not reasonably likely to result in, a Material Adverse Restriction, and (E) all other representations and warranties of the Company shall have been true and correct when made and at and as of the Effective Time as if made at and as of such time (provided, that representations made as of a specific date shall be required to be true and correct as of such date only), except where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, does not have, and is not reasonably likely to have, a Company Material Adverse Effect and (iii) Purchaser shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company to the foregoing effect; (b) there shall not be pending (i) any action or proceeding by any Governmental Entity before any court or Governmental Entity or (ii) any action or proceeding by any other Person, in any case referred to in clauses (i) and (ii), that has a reasonable likelihood of success seeking to (x) make illegal, to delay materially or otherwise directly or indirectly to restrain or prohibit the consummation of the Merger or the other transactions contemplated hereby or by the Ancillary Documents or seeking to obtain material damages, (y) restrain or prohibit Purchaser’s (including its affiliates) ownership or operation of all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or Subsidiaries or affiliates, or to compel Purchaser or any of its affiliates (including the Surviving Corporation after the Effective Time) to dispose of or hold separate all or any material portion of the business or assets of the Company (including the Surviving Corporation after the Effective Time) or its Subsidiaries, or (z) impose or confirm material limitations on the ability of Purchaser or any of its affiliates (including the Surviving Corporation after the Effective Time) to effectively control the business or operations of the Company (including the Surviving Corporation after the Effective Time) or any of its Subsidiaries or effectively to exercise full rights of ownership of the Common Stock, including, without limitation, the right to vote any Common Stock acquired or owned by Purchaser or any of its affiliates on all matters properly presented to the holders of Common Stock, and no Governmental Entity or arbitrator shall have issued any judgment, order, decree or injunction, and there shall not be any Law, that, in Purchaser’s reasonable judgment, is likely, directly or indirectly, to result in any of the consequences referred to in the preceding clauses (x) through (z); provided, however, that Purchaser shall use its reasonable best efforts to have any such judgment, order, decree or injunction vacated; (c) the Company shall have (i) obtained or made all consents, approvals, actions, orders, authorizations, registrations, declarations, announcements and filings identified on Section 8.3(c) of the Company Disclosure Letter; provided, however, that this condition shall be deemed satisfied if the failure of this condition is due to willful breach by Purchaser or Merger Sub of any of its material covenants in this Agreement and (ii) obtained the termination as of the Closing Date of the Management Consulting Services Agreement, dated as of December 18, 1994, by and among Perry Capital Corp., Perry Principals, L.L.C., ▇▇▇▇ Capital, Inc. and Fleet Growth Resources, Inc., without any further payment due by, or liability or obligation of, the Company (including its Subsidiaries and successors) thereunder; (d) the aggregate number of shares of Common Stock at the Effective Time, the holders of which have demanded appraisal of their shares from the Company in accordance with the provisions of Section 262 of the DGCL, shall not equal 10% or more of the Common Stock outstanding as of the record date for the Stockholder Meeting; (e) since the date of this Agreement, there shall not have occurred any change, event, occurrence, development or circumstance which, individually or in the aggregate, constitutes or could reasonably be expected to result in, a Company Material Adverse Effect;; and (f) the employment and non-competition agreements, as amended, listed on Section 8.3(f) of the Company Disclosure Letter shall be in full force and effect and none of such individuals shall be unable or unwilling, absent a breach or default by the Company of his underlying employment and non-competition agreement, to provide his services in accordance with the terms and conditions of his employment and non-competition agreement (as so amended); provided, however, that the condition set forth in this Section 8.3(f) will be deemed to be waived with respect to all persons listed on Section 8.3(f) of the Company Disclosure Letter, except ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who becomes incapable of performing such services due to the death or “Disability” (as that term is defined in the applicable employment agreement) of such individual; (g) at or prior to the Closing, on behalf of holders of Common Stock, the Company shall furnish to Purchaser an affidavit stating, under penalty of perjury, that the Company is not and has not been a United States real property holding corporation at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code; (h) ▇▇. ▇▇▇▇▇▇ and the other executives of the Company listed in Section 8.3(h) of the Company Disclosure Letter (to the extent executives, other than ▇▇. ▇▇▇▇▇▇, elect to invest) (the “Investing Executives”) shall have invested at least $4.0 million in the aggregate in any combination of (i) common equity of the Purchaser and (ii) preferred equity of the Purchaser; provided, however, that any such Investing Executive shall not invest in any class of preferred equity of the Purchaser in an amount that exceeds an amount equal to (A) such Investing Executive’s aggregate investment in the equity of the Purchaser, multiplied by (B) a fraction equal to the amount of equity invested in such class of preferred equity by Persons other than such Investing Executive divided by the aggregate amount of equity invested in the Purchaser by Persons other than the Investing Executives; and; (i) the Financing or any alternate or substitute financing contemplated by Section 7.12 and the retirement of all of the Company’s and its Subsidiaries’ indebtedness and the release of any related liens shall have been consummated on terms reasonably acceptable to Merger Sub; provided, however, that the terms of the Financing Letters as of the date hereof shall be deemed to be acceptable to Merger Sub; and provided, further, however, that Purchaser and Merger Sub hereby acknowledge that if the parties to the Financing Letters other than LGP are prepared to fully comply with their respective obligations thereunder to enter into and advance $100 million of funds under the Senior Credit Facilities (as defined in the Bank Commitment Letter) and to enter into the revolving credit facility of $50 million contemplated by the Bank Commitment Letter and either (A) purchase $150 million aggregate principal amount of the Securities (as defined in the Bank Commitment Letter) or (B) make the Bridge Loans (as defined in the Bank Commitment Letter) in the aggregate principal amount of $150 million (as contemplated by the Bank Commitment Letter), the condition set forth in this Section 8.3(i) shall be deemed to have been satisfied.